The issuance of formal grades or other forms of assessment of student performance is a time-honored practice designed to offer formative and summative feedback to students and their parents. Grades are used to evaluate advancement from course to course; promotion and retention; placement in special education and gifted education; class rank; eligibility for extracurricular activities; eligibility for academic awards, honor societies, scholarships, and graduation; employment outside of school; and admission to colleges and universities. Consequently, grades are important to students and families and occasionally generate legal claims. While many students are disappointed with their grades from time to time, they have rarely mounted successful legal claims designed to change grades and related decisions, such as those for promotion and retention. In Sandlin v. Johnson (1981), for example, the Fourth Circuit stated as follows:
Decisions by educational authorities which turn on evaluation of the academic performance of a student as it relates to promotion are peculiarly within the expertise of educators and are particularly inappropriate for review in a judicial context. (p. 1029)
A case involving higher education, from the Supreme Court, made a similar point:
The decision of an individual professor as to the proper grade for a student in his course . . . requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision making. (Board of Curators of University of Missouri v. Horowitz, 1978, p. 90)
These holdings illustrate the important point that courts will most often defer to the day-to-day decision making of educators at all levels, except in the most egregious cases.
Those egregious cases generally involve alleged violation of due process in the form of liberty and/or property. A liberty interest in grades, if one exists, is found in the academic records of students, just as their liberty interests are recognized in their reputations, good names, honor, and ability to use their records for employment or further education. While it is not universally agreed that grades constitute liberty interests, such a claim is conceivable. As such, it is important that educators do not abuse the discretion they have to assess student performance and assign grades.
As another example, it is important that school officials be aware of arbitrary and unreasonable attendance policies. A policy that enforces legitimate truancy laws is fine, yet a policy that makes no distinction between excused and unexcused absences could be applied to unreasonably harm a student’s progress toward promotion or graduation (Barno v. Crestwood Board of Education, 1998). Similarly, it is important for schoolteachers and administrators to be aware of the imposition of excessive academic penalties, such as those administered in cases of plagiarism, or other discipline that results in students’ exclusion from academic activities or from school altogether.
A property interest in grades would most likely be found in a claim for a denied diploma, should a student feel that adverse and unlawful decisions had been made to deny him or her that right. School officials should be careful not to impose excessive disciplinary penalties too close to graduation dates for students who have earned the requisite amount of credits (Shuman v. Cumberland Valley School District Board of Directors, 1988) or suspend or expel students near the end of semesters and refuse academic credit already earned for that term (South Gibson School Board v. Sollman, 2000). Having written this, notions of academic freedom and deference to educational decision making remain strong and diminish the likelihood of success in a property deprivation lawsuit, except in cases of clear abuse of discretion.
Recommendations for Practice
Given court rulings with regard to grading practices, the following recommendations should be considered:
- Administrative and educational decisions regarding the issuance of grades are given great deference by the courts, but decision makers should exercise discretion wisely, objectively, and consistently.
- The laws and regulations of promotion, retention, and graduation vary by state; readers are encouraged to check their jurisdiction for the applicable laws.
- As long as promotion and retention decisions are made with solid evidence of academic progress and social growth; made consistently with established policies, practices, and state regulations; and made with some rational basis, courts will not intervene.
- Policies for the naming of valedictorian and salutatorian should be clearly articulated and be applied consistently, avoiding discrimination on factors such as disability. (Hornstine v. Township of Moorsetown, 2003).
- Students should be given a fair opportunity to take courses, including those with weighted grades for purposes of grade point averages, and to earn grades and credits.
- Educators should be careful not to impose excessive disciplinary penalties that would harm the student’s legitimate opportunity to earn academic credit and advance from grade to grade.
Patrick D. Pauken
- Pauken, P. D. (2005). Promotion, retention, and graduation. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), Principal’s legal handbook (pp. 69–91). Dayton, OH: Education Law Association.
- Sperry, D. J., Daniel, P. T. K., Huefner, D. S., & Gee, E. G. (1998). Education law and the public schools: A compendium (pp. 577–579). Norwood, MA: Christopher- Gordon.
- Barno v. Crestwood Board of Education, 731 N.E.2d 701 (Ohio Ct. App. 1998).
- Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978).
- Hornstine v. Township of Moorsetown, 263 F. Supp.2d 887 (D.N.J. 2003).
- Sandlin v. Johnson, 643 F.2d 1027 (4th Cir. 1981).
- Shuman v. Cumberland Valley School District Board of Directors, 536 A.2d 490 (Pa. Commw. Ct. 1988).
- South Gibson School Board v. Sollman, 728 N.E.2d 909 (Ind. Ct. App. 2000).